Filed 10 / 19 / 22 Superior Investments Management v. Marks CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SUPERIOR INVESTMENTS MANAGEMENT INC.

, et al

.,

Plaintiff s and Respondent s ,

v.

JOHN L. MARKS, Individually and T rustee
, etc
.,
Defendant and Appellant. 2d Civil No. B314536 (Super. Ct. No. 56

- 2020

- 00543440

- CU

- BC

- VTA) (Ventura County)

John L. Marks, as an individual and trustee of the John L.
Marks Trust

, appeal s the trial court’s denial of his motion to set aside default and default judgment after it found his default constituted inexcusable neglec t

. ( See Code Civ. Proc., § 473, subd. (b).) 1 We affirm.

1 All further statutory references are to the Code of Civil Procedure , unless otherwise indicated.2 FACT S AND PROCEDURAL HISTORY In July 2020, respondents Superior Investments Management, Inc., Tony Marino and Associates , Inc., and Linda
Kocalis Corwin

, as trustee of the Harold Kocalis Trust, filed the instant action against appellant, his wife , Anna Marks

, and his mother, Dorothy Marks (collectively “ appellants ”) 2 alleging damages for breach of obligation to pay money. (Civ. Code, § 3302.) In the first amended complaint, respondents conten d ed
that appellants executed a promissory note in May 2020 for the principal sum of $500,000 with interest

, due and payable on June 26, 2020. Appellant s subsequently defaulted on the note and ignored respondents’ demand for repayment.
In October 2020, the trial court entered default after appellants failed to file an answer

. In late March 2021, appellants moved the trial court to set aside default and default judgment. In his motion for relief, appellant contended that he

was “overwhelmed” by the “stress” of personal family problems

, which caused him to mis underst an d the “ process and time
demands” to file an answer. He a lso claime d that he had not

seen , nor had he ever signed, the promi ssory note attached as an exhibit to the complaint

. He included a declaration from a Certified Handwriting Examiner who opined it “unlikely” that appellants signe d the note. The trial court denied the motion, stating that appellant s ’
motion focused primarily on the merits of their defense, and “barely address[ed] the foundational issue of mistake, inadvertence, surprise or excusable neglect.” The trial court

2 We will refer to the defendants collectively as appellants

, although A nna and Doro t h y Marks d id not appeal the trial court’s order.3

concluded appella nt s’ excuses “ demonstrate[d] inexcusable neglect, not excusable neglect.”
DISCUSSION Section 473 grants a trial court the discretionary authority

to relieve a party from a judgment

, order, or other proceeding taken against him through his mistake, inadv ertence, surprise or excusable negl e ct

. ( Id

. , subd. (b).) A pplication for such relief
must be made within a reasonable time, and in no case exceeding
six months after such judgment, order, or proceeding was taken. ( Ibid. ) The party seeking relief bears the burden to establish a right to relief. ( Hopkins & Carley v. Gens (20 11) 20 0 Cal.App.4 th 1401, 1410; Transit Ads, Inc. v. Tanner Motor Livery, L td (1969) 270 Cal.App.2d 275, 279 ( Transit Ads, Inc. ) .) As we have previously stated, an appellant who seeks reversal of a trial court’s discretionary ruling has a “‘daunting task.’” ( Dreamweaver Andalusians, LLC v. Prudential Ins. Co. of
America (2015) 234 Cal.App. 4 th 1168, 1171.) That is because a ruling on a motion for discretionary relief shall no t be disturbed

on appeal absent a clear showing of abuse. ( Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4 th 249 , 257.) In other words, appellant must show that the trial court’s ruling was “arbitrary, capricious, whimsical, or exceeded the bounds of

reason .” ( Dreamweaver Andalusians

, at p. 1171 .) As we explain, appellant has not satisfied this exacting standard.
Here

, the trial court did not abuse its discretion in concluding appellant had not established excusable neglect. As pertinent to section 473, subdivision (b) , excusable neglect means
an error that a “ ‘ reasonably prudent person under

. . . similar
circumstances ’ might have made

. . . .” ( Bettencourt v. Los Rios4

Community College Dist. (1986) 42 Cal.3d 270, 276; Trans it Ads,
Inc.

, supra , 270 Cal.App.2d at p. 279.)
A ppellant’s claim of “excusable neglect” rested on his
assertion that the stress of personal family problems , including raising his grandchildren

, caused him to miss the date to file an answer to the complaint

. But t he trial court rejected this explanation

, concluding it was “beyond comprehension” that appellant, “ar med with a strong defense of wrongdoing by plaintiff and with half a million dollars at stake, acted reasonably ” by his inaction in this case. We agree. A reasonable person in appellant’s situation would have hired counsel to help him navigate the process of responding to the complaint rather
than ignoring it altogether.
C ontrary to appellant’s contention , the record does not
establish that he acted with “reasonable diligence.” For example

, he did not file the motion to set a side default until more than five
months after the entry of default

. Appellant’s proffered explanation for this delay was that he relied on respondents ’
reassurances that she would dismiss the case. However, t he trial court found that explanation lacking

. S ubstantial evidence supports the trial court’s finding that appellant’s fail ure to timely respond to the complaint and his lengthy delay in seeking relief was not excusable neglect . In light of our “limited” review, we will not substitute our judgment for
that of the trial court ’s , even where contrary findings could have
been mad e. ( See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478

- 479 ; In re Marriage of Connolly (1979) 23 Cal.3d 590, 597

- 598 .) Appellant resists this conclusion and contends that reversal is required because respondent s will suffer no prejudice and the
law favors a trial on the merits

. “Although the policy of the law5

is to favor a hearing on the merits of a case, courts are not required to set aside default judgments for defendants who flagrantly ignore the responsibili ty to present a defense

, ” or who

cannot “ demonstrate a satisfactory excuse for not respond ing ” to the original action. ( Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1148.) Lastly, a ppellant’s conten tion that the default judgment is
void on its face is waived because he did not raise it below. ( See 4 Witkin, Cal. Procedure (6 th ed. 2021) Pleading, § 124, p. 186

. )
DISPOSITION
The order denying the motion to set aside default and
default judgment is affirmed

. Respondent s are awarded costs on appeal.
NOT TO BE PUBLISHED

.

YEGAN, J.
We concur:

GILBERT, P. J.

BALTODANO , J.Benjamin F. Coats

, Judge Superior Court County of Ventura

______________________________

Sollertis and Steven W. Blake, Giovan n i A. Correa

, for
Defendant and Appellant.

Freeman Fazio and Sara D. Fazio , for Plaintiff s and Respondent s

.